Bombay High Court Rejects Developer’s Claim for Additional TDR, Emphasizes Mandatory Compliance with DCPR 2034 Regulations

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Court’s Decision

The High Court of Bombay dismissed the petition, stating that the petitioner cannot claim benefits under the new DCPR 2034 without fully or partially converting the project to comply with its regulations. The petitioner’s demand for additional TDR benefits under DCPR 2034, while executing the project under the DCR 1991, was rejected.

Key Takeaways:

1. Entitlement to TDR benefits under DCPR 2034 requires compliance with the conditions specified within the new regulations.
2. The writ petition seeking declaratory relief to establish entitlement was held not maintainable.

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Facts of the Case

1. Developer’s Role: The petitioner was a developer under the Slum Rehabilitation Scheme (SR Scheme) and entered into tripartite agreements with the respondents for constructing rehabilitation tenements for Project Affected Persons (PAPs).
2. Land Development: The petitioner provided land and constructed buildings, earning TDR under the terms of the DCR 1991.
3. New Regulation: In 2018, the DCPR 2034 replaced the DCR 1991. The new regulations allowed higher TDR benefits, subject to conditions.
4. Claim for Additional TDR: The petitioner sought additional TDR under DCPR 2034 without converting the project from DCR 1991 to DCPR 2034.

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Issues

1. Is the petitioner entitled to additional TDR benefits under DCPR 2034 without converting the project?
2. Is the writ petition maintainable for seeking declaratory relief regarding TDR entitlements?

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Petitioner’s Arguments

1. Entitlement Under Tripartite Agreement: The petitioner argued that the tripartite agreement entitled them to benefits under subsequent regulations, including DCPR 2034.
2. Compliance with Existing Conditions: The petitioner contended that all conditions under DCR 1991 had been met, and the additional TDR benefits should automatically apply.
3. Fair Treatment: The petitioner relied on the principles of fairness and reasonableness, asserting that the government cannot act arbitrarily in contractual matters.
4. Promissory Estoppel: The petitioner argued that the respondents were estopped from denying additional TDR benefits, as the tripartite agreement contained provisions for the application of updated regulations.

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Respondent’s Arguments

1. Conditional Benefits: The respondents emphasized that benefits under DCPR 2034 were conditional upon compliance with its provisions, including conversion of the project.
2. Maintainability of the Petition: They argued that a writ petition seeking declaratory relief to establish a new right was not maintainable.
3. Public Interest and Legal Framework: The respondents contended that granting additional TDR without conversion would be contrary to public policy and statutory requirements.
4. Precedents: The respondents cited judgments emphasizing that promissory estoppel cannot override statutory provisions or public interest considerations.

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Analysis of the Law

1. Terms of the Agreement: Clause 32 of the tripartite agreement explicitly provided that the terms of prevailing laws and regulations, including DCPR 2034, would supersede the agreement.
2. Provisions of DCPR 2034: Regulation 33(10) and Regulation 9(6) require either full conversion of the project or application of new provisions to the balance development for additional TDR benefits.
3. Supreme Court Precedents:
   • Rajasthan State Industrial Development Corporation v. Diamond and Gem Development Corporation: Writ jurisdiction cannot create new rights but only enforce existing ones.
   • Shree Sidhbali Steels Limited v. State of Uttar Pradesh: Promissory estoppel cannot compel authorities to act against statutory provisions or public interest.

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Precedent Analysis

The court highlighted several precedents:

1. A writ cannot establish new entitlements—it can only enforce rights that have already crystallized.
2. Promissory estoppel is inapplicable when it contradicts the law or public interest.

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Court’s Reasoning

1. Non-Compliance with DCPR 2034: The petitioner had not converted the project to comply with DCPR 2034, as required for claiming additional TDR benefits.
2. Unjust Enrichment: Allowing the petitioner to claim additional TDR without fulfilling the necessary conditions would result in unjust enrichment and contradict public policy.
3. Maintainability of the Petition: The court held that the petitioner’s writ was not maintainable as it sought to establish a new right, contrary to the principles laid down in judicial precedents.

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Conclusion

1. The petitioner’s claim for additional TDR under DCPR 2034 was dismissed as they failed to comply with the necessary conditions.
2. The writ petition seeking declaratory relief was held not maintainable.
3. The court clarified that the petitioner was entitled only to the benefits under DCR 1991, as per the tripartite agreement.

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Implications

This judgment underscores the following principles:

1. Developers seeking additional benefits under new regulations must comply with all stipulated conditions.
2. Writ petitions cannot be used to establish new rights—they are limited to enforcing existing legal entitlements.
3. Agreements with public authorities are subject to prevailing laws, which take precedence over contractual terms.

The ruling reinforces the legislative intent behind urban development regulations, ensuring that developers adhere to statutory requirements to claim benefits. It also affirms the principle that public interest and fairness in governance must guide decisions in matters involving public resources and benefits.

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